The Metropolitan Water Dist. of S. Cal. v. Collins CA2/3

Filed 3/23/22 The Metropolitan Water Dist. of S. Cal. v. Collins CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE METROPOLITAN WATER B305990
DISTRICT OF SOUTHERN
CALIFORNIA, Los Angeles County
Super. Ct. No. 19STCP00437
Plaintiff and Appellant,
v.
R. DOUGLAS COLLINS,
Defendant and Respondent.
EMPLOYEES ASSOCIATION OF
THE METROPOLITAN WATER
DISTRICT OF SOUTHERN
CALIFORNIA / AMERICAN
FEDERATION OF STATE, COUNTY
& MUNICIPAL EMPLOYEES,
LOCAL 1902, AFL/CIO,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Mitchell Beckloff, Judge. Affirmed.
Marcia L. Scully, Heather C. Beatty, Henry Torres,
Anthony Allen Zepeda; Atkinson, Andelson, Loya, Ruud & Romo,
Nate J. Kowalski and Jennifer D. Cantrell for Plaintiff and
Appellant.
Rothner, Segall & Greenstone, Eli Naduris-Weissman and
Jonah J. Lalas for Real Party in Interest and Respondent.
_________________________
The Metropolitan Water District of Southern California
(Metro) fired Timothy Leuschner for fighting another employee,
violating its no-smoking policy, and insubordination. Leuschner’s
union, American Federation of State, County & Municipal
Employees, Local 1902 (AFSCME), appealed Metro’s decision to
a neutral hearing officer. At the hearing, Metro sought to prove
Leuschner was the aggressor who intentionally harmed the other
employee. The hearing officer instead found the other employee
initiated the physical altercation by headbutting Leuschner
in the face, and Leuschner used force to defend himself. The
hearing officer also found Metro’s other bases for terminating
Leuschner were unpersuasive. Accordingly, it ordered Metro
to reduce Leuschner’s discipline to a three-week suspension.
On appeal, Metro argues the hearing officer abused his
discretion because he failed to consider relevant factors and
evidence, his findings lack the support of substantial evidence,
and his findings do not support his decision. Metro also argues
the hearing officer lacked authority to impose a suspension.
We affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
Metro is a governmental agency that imports, stores,
and distributes water to member agencies, which in turn sell
the water to consumers. Leuschner began working for Metro
in July 2006 as a Water Treatment Operator at its Diemer
Water Treatment Plant (Diemer Plant). Leuschner worked
in the Diemer Plant’s control room, monitoring and adjusting
equipment that pumps and treats water before distributing it
to various cities and water districts. Leuschner consistently
received high performance evaluations from his supervisors.
Sometime in 2016, Metro modified its no-smoking policy
to include electronic cigarettes (e-cigarettes). Metro informed
Diemer Plant employees about the change in policy at a “toolbox
safety meeting.”
Most Metro operators, including Leuschner, worked a
grueling schedule consisting of seven days on, followed by seven
days off. The operators alternated between working day shifts
and night shifts. Each shift was 12 and a half hours long.
Around 5:00 a.m. on March 20, 2017, Leuschner’s manager,
David Miller, sent an email to several individuals—but not
Leuschner—informing them he would be on leave and Daryl
Norman would be “acting manager” during his absence. Like
Leuschner, Norman was a Water Treatment Operator. Norman,
however, generally did not work in the control room. Norman
held a “T-5 certification” from the State of California, which was
higher than Leuschner’s certification.
Around 6:00 a.m. that morning, Leuschner was working
in the control room, preparing for the end of his fifth night shift
in a row. Norman walked into the control room and noticed
Leuschner “vaping” an e-cigarette. Norman said something
3
to the effect of, “[Leuschner], are you really smoking in here?”
Leuschner rolled his eyes. Norman and Leuschner had a heated
verbal exchange that eventually turned physical. We describe
the fight in more detail below.
Leuschner suffered minor injuries from the fight. Norman
suffered a cut on his forehead, which required stiches. Norman
claimed he suffered other, more serious injuries as well, which
we discuss below.
Shortly after the fight ended, Leuschner told another
manager he had an argument with Norman over vaping, and
then Norman headbutted him. Leuschner said he threw Norman
to the ground twice and kicked him.
1. Metro’s Discipline
A Metro security specialist, Mark Sovern, investigated
the incident and made three findings: (1) Leuschner violated
Metro’s no-smoking policy by using an e-cigarette in the control
room; (2) Leuschner and Norman engaged in physical combat
in violation of Metro policy; and (3) it is not possible to determine
who struck the first blow.
After Sovern’s investigation, Metro issued both Leuschner
and Norman notices that it intended to discharge them.
Leuschner’s notice cited the following reasons for his dismissal:
(1) insubordination; (2) fighting; (3) harassing, threatening,
intimidating, or coercing another employee; (4) failure to work
cooperatively with others; (5) engaging in an activity that creates
a safety, fire, or security hazard; (6) smoking in restricted areas
or where “no smoking” signs are posted or otherwise violating
Metro’s no-smoking policy; and (7) failure to meet acceptable
performance standards.
4
Metro held pre-discipline Skelly hearings1 to allow
Leuschner and Norman opportunities to respond to its proposed
discipline. At his hearing, Leuschner initially denied recalling
whether he kicked Norman during the fight. Later, he claimed
he never kicked Norman.
The Skelly hearing officer, Stephen Lem, issued decisions
sustaining the recommended discipline against Leuschner, but
reducing Norman’s discipline to a three-week suspension. Lem
explained he was persuaded to uphold Leuschner’s termination
based on the fact that the “incident escalated to a full blown
physical altercation, due in large part to [Leuschner’s] violation
of [the no-smoking policy] compounded by [his] insubordination
towards an acting Team Manager. These acts, combined with
a very serious physical altercation that resulted in Mr. Norman
being hospitalized, constitute a sequence of events that cannot
be tolerated.” In reducing Norman’s discipline, Lem explained
that, although Norman “deserve[d] a fair share of the blame for
the physical altercation,” he did not violate the no-smoking policy
or engage in insubordination.
2. The administrative appeal
Leuschner’s union, AFSCME, appealed the termination
of his employment per the terms of its memorandum of
understanding (MOU) with Metro. A neutral officer conducted
1 Before a civil service employee can be fired for cause,
the employee is entitled to a “probable-cause-type proceeding,”
known as a Skelly hearing, after our Supreme Court’s
announcement of this right in Skelly v. State Personnel Board
(1975) 15 Cal.3d 194, 215–216 (Skelly). (Asimow et al., Cal.
Practice Guide: Administrative Law (The Rutter Group 2021)
¶ 3:196.)
5
an evidentiary hearing over the course of several days. At the
start of the hearing, the parties stipulated that the officer was
to decide the following issues: “Was Timothy Leuschner
discharged by [Metro] for just (proper) cause? If not, what shall
be the remedy?”
Leuschner testified at the hearing that he was vaping
an e-cigarette in the control room when Norman said, “Are you
smoking? Are you vaping?” At the time, Leuschner did not know
Metro’s no-smoking policy prohibited e-cigarettes. Leuschner
did not attend the “toolbox” meeting at which Metro discussed
the policy, either because he was working in the control room
or was off duty. Leuschner had previously smoked e-cigarettes
in front of his regular manager, who did not object.
Leuschner claimed he put the e-cigarette down and turned
to face Norman. Norman said, “ ‘You can’t smoke that shit in
here.’ ” Leuschner told Norman, “ ‘[Y]ou don’t have to be in here.
You can fucking leave. . . . You’re not an operator.’ ” Norman
replied, “ ‘Well, I’m the acting supervisor today.’ ” Leuschner
thought Norman’s response was a “half-hearted attempt to
make [him] feel like [he] shouldn’t be in his face.” Leuschner
told Norman his “T-5 [certification] doesn’t mean anything; to
fucking shove [the certification] up his ass . . . .” At the hearing,
Leuschner said if the Pope yelled at him at 6:00 a.m. after his
fifth night shift in a row, he would have said, “ ‘What the heck?’ ”
and gotten in the Pope’s face as well.
According to Leuschner, he and Norman were about
18 inches apart as they continued to argue. At some point,
Norman headbutted Leuschner in the face. Leuschner responded
by grabbing Norman and throwing him to the floor. Norman
abruptly got up and “bull-rushed” Leuschner, pushing him
6
up against a console. Leuschner grabbed Norman and threw
him over his shoulder, onto the console. Norman rolled over
onto his side, punched Leuschner three time in the ribs, and
tried to punch Leuschner in the face. Leuschner pulled Norman
off the console and threw him to the ground to try to put some
distance between them. Norman’s head hit the ground, which
made a “sickening” sound. Leuschner thought Norman was
unconscious. Norman, however, quickly pushed himself off
the ground, onto his hands and knees.
Based on how quickly Norman popped up off the ground,
Leuschner thought he was going to attack again. Leuschner
panicked and kicked Norman on his cheek. Leuschner
demonstrated the kick during the hearing, which the hearing
officer characterized as a “light[ ] kick[ ].”
Norman got up slowly and looked dazed. He walked into
the kitchen, and Leuschner followed him, asking, “ ‘Why did
you do that?’ ” Norman responded, “ ‘Go home, [Leuschner].’ ”
Leuschner left the kitchen and went to find his manager,
Wes Wiggs. According to Wiggs, Leuschner was nervous and
“upset at himself,” and he immediately said something to the
effect of “I messed up.” Leuschner told Wiggs that Norman
started the physical altercation by headbutting him.
Norman claimed to remember very little about the
altercation. According to Norman, he was talking to another
employee in the control room when he noticed smoke out of
the corner of his eye. He turned to Leuschner and said, “Are
you really smoking in here?” Leuschner rolled his eyes, got out
of his chair, and approached Norman. They had a heated verbal
exchange, and Norman could feel the spit from Leuschner’s
mouth as he was yelling.
7
Norman could not remember whether he headbutted
Leuschner, but he did not believe he did. He felt cornered,
and the next thing he remembered was falling off the desk onto
the ground. Norman woke up on the ground and noticed blood
in front of him. He eventually got up and went into another
room. According to Norman, in addition to the cut on his
forehead, he suffered cuts on his lip, chin, and cheek, a bruised
bicep, a sprained back, and a hairline fracture around his knee.
Three other Metro employees were in the control room
during the fight: David Murphy, Barry Veale, and Randall Scott
Lee. None of the employees saw how the physical fight started,
but their accounts of the altercation were generally consistent
with Leuschner’s testimony. Two of the employees did not know
at the time that Metro had a policy prohibiting e-cigarettes.
3. Metro’s post-hearing brief
In its post-hearing brief, Metro represented that, although
it cited several bases for disciplining Leuschner, in essence,
it terminated him for fighting. Therefore, according to Metro,
“Leuschner’s appeal will hinge in the final analysis on whether
the workplace violence at issue warrants termination.” Metro
insisted the evidence shows Leuschner was the aggressor and
he engaged in a series of deliberate acts to inflict physical harm
on Norman. It argued it acted appropriately in imposing
different discipline on Leuschner and Norman because they
were not equally culpable or equally engaged in misconduct.
4. The hearing officer’s decision
The hearing officer concluded Metro did not have just
cause to terminate Leuschner, and it ordered Metro to impose
a three-week suspension instead. The officer found that,
although Leuschner and Norman engaged in “mutual combat,”
8
it “was Norman who initiated the confrontation by approaching
within 18 inches of [Leuschner] during their argument regarding
[Leuschner’s] vaping and then suddenly lunged forward and
headbutted [Leuschner], striking him in his face. . . . Given that
conclusion, it is irrelevant that Norman suffered greater injury
than [Leuschner] as [Leuschner] was simply defending himself
from attack.”2 The officer found Leuschner to be “forthright
and credible” while testifying at the hearing, whereas Norman
“seemed somewhat glib if not evasive.”
The hearing officer further found Metro’s other reasons
for terminating Leuschner—his violation of the no-smoking
policy and insubordination—were not persuasive. As to
insubordination, the officer found Metro did not notify Leuschner
and other employees in the control room that Norman was
the acting manager. Although there was evidence suggesting
Norman informed Leuschner of that fact during their argument,
the officer found it would be unreasonable to expect Leuschner
to simply take Norman’s word for it without confirmation
from a higher authority, especially given the circumstances.
2 In criminal law, “ ‘mutual combat’ ” is a term of art that
means “fighting by mutual intention or consent, as most clearly
reflected in an express or implied agreement to fight.” (People
v. Ross (2007) 155 Cal.App.4th 1033, 1046–1047.) It does not
appear the hearing officer intended to use the phrase in that
way, as it would be inconsistent with his findings that Norman
initiated the physical altercation and Leuschner was defending
himself from attack. Instead, it seems the officer used the phrase
in a colloquial sense to mean both parties used physical force
against each other. (Id. at p. 1044 [“In ordinary speech . . .
‘mutual combat’ might properly describe any violent struggle
between two or more people, however it came into being.”].)
9
The officer also found the undisputed evidence showed Metro
never informed Leuschner of its policy prohibiting e-cigarettes.
The officer further explained that, even if it were not clear
who started the physical altercation, the “extreme difference in
the disciplinary penalties meted out to [Leuschner] and Norman
were . . . unjustified, particularly given that [Metro] concluded
that Norman had acted improperly. Moreover, it appears from
the record evidence that the discharge of [Leuschner] was also
disproportionate to that imposed by [Metro] in previous cases
of fighting.” In addition, the officer noted Leuschner was
a long-term employee with excellent reviews and no prior
discipline, and management regarded him highly.
5. Metro’s writ petition
Metro challenged the hearing officer’s decision by filing
a petition for writ of mandate in the superior court under
Code of Civil Procedure section 1094.5.3 Metro made three main
arguments in support of its petition. First, it argued the hearing
officer exceeded his authority under the MOU by imposing
a suspension. According to Metro, under the MOU, the
hearing officer only could sustain or revoke its chosen discipline.
Second, Metro argued the hearing officer’s own findings showed
Leuschner was insubordinate and violated the no-smoking policy.
Finally, it argued there is insufficient evidence supporting
the hearing officer’s findings that Norman was the instigator
and that Norman and Leuschner were equally culpable.
At oral argument, the superior court pointed out that
the MOU does not expressly grant the hearing officer the
3 All future undesignated statutory references are to the
Code of Civil Procedure.
10
authority to remand a case to Metro to impose lesser discipline.
Therefore, under Metro’s reading of the MOU, if the officer found
Leuschner’s discipline was excessive and revoked it, Leuschner
would return to work without any punishment. Metro responded,
“Well, hypothetically, I can’t argue with that scenario.” Metro
said, in that situation, its recourse would be to challenge the
sufficiency of the evidence supporting the hearing officer’s
decision to revoke.
6. The superior court’s decision
The superior court granted the petition in part and
remanded the case to the hearing officer to reconsider his
decision. The court found the MOU granted the hearing officer
implied authority to modify Leuschner’s discipline. The court
alternatively found Metro granted the hearing officer authority
to impose a suspension by stipulating that he could decide
the appropriate remedy in the event he revoked Leuschner’s
termination.
The court, however, determined substantial evidence
does not entirely support the hearing officer’s determination
that Norman “ ‘initiated the confrontation.’ ” The court explained
that the officer’s determination was based on three other
findings: (1) Norman approached Leuschner within 18 inches
during their argument; (2) Norman suddenly lunged forward; and
(3) Norman headbutted Leuschner in the face. The court found
substantial evidence supports the second and third findings,
but not the first one. The court, therefore, granted the petition
in part and remanded the matter to the hearing officer to
reconsider his decision in light of the lack of evidence supporting
his finding that Norman approached Leuschner within 18 inches.
11
Metro timely appealed.4
DISCUSSION
1. Standard of review
Under section 1094.5, a party may petition for judicial
review of an administrative “decision made as the result
of a proceeding in which by law a hearing is required to be
given, evidence is required to be taken, and discretion in
the determination of facts is vested in the inferior tribunal,
corporation, board, or officer.” (§ 1094.5, subd. (a).) The judicial
inquiry extends to whether the decisionmaker “has proceeded
without, or in excess of, jurisdiction; whether there was a fair
trial; and whether there was any prejudicial abuse of discretion.”
(Id., subd. (b).) An administrative decisionmaker abuses
its discretion if it “has not proceeded in the manner required
by law, the order or decision is not supported by the findings,
or the findings are not supported by the evidence.” (Ibid.)
The standard of review in a section 1094.5 proceeding
depends on whether the administrative decision substantially
affects a fundamental vested right. “ ‘It is well-established
that an employer’s right to discipline or manage its employees . . .
is not a fundamental vested right . . . .’ ” (County of Los Angeles
4 Although the superior court remanded the matter to
the hearing officer for reconsideration, because the court did
not reserve jurisdiction to consider any issues, its judgment
is final and immediately appealable. (See Dhillon v. John
Muir Health (2017) 2 Cal.5th 1109, 1116–1117; Asimow et al.,
Cal. Practice Guide: Administrative Law, supra, ¶ 21:30 [“[i]f
a trial court grants a writ of mandate against an agency that
remands the case back to that agency for further consideration,
but without retaining jurisdiction over the case, the agency is
entitled to appeal the trial court decision”].)
12
v. Civil Service Com. (1995) 39 Cal.App.4th 620, 633.) As a
result, we do not review the superior court’s decision; instead,
we directly review the hearing officer’s decision using the
substantial evidence test. (Ibid.)
Under this standard of review, we “view the evidence in
the light most favorable to the [hearing officer’s decision] and
accept as true all evidence tending to support [it], including all
facts that reasonably can be deduced from the evidence.” (Pedro
v. City of Los Angeles (2014) 229 Cal.App.4th 87, 99.) We must
uphold the decision if, viewed in this light, the record discloses
substantial evidence to support the hearing officer’s findings.
(See San Diego Unified School Dist. v. Commission on
Professional Competence (2011) 194 Cal.App.4th 1454, 1461.)
2. The hearing officer’s decision does not manifest
an indifference to the Skelly factors
Metro contends the hearing officer failed to proceed in
the manner required by law because his decision manifests an
indifference to the factors identified by the Supreme Court in
Skelly, supra, 15 Cal.3d 194.5 In Skelly, our state’s high court
explained that to determine whether an administrative body
abused its discretion when imposing discipline on a public
employee, “the overriding consideration . . . is the extent to
which the employee’s conduct resulted in, or if repeated is likely
to result in, ‘[harm] to the public service.’ [Citations.] Other
relevant factors include the circumstances surrounding the
5 To the extent AFSCME argues Metro forfeited this issue
by failing to raise it below, we disagree. Under Skelly, we are
obligated to consider whether the hearing officer’s decision
sufficiently accounts for the factors the Supreme Court identified.
It is not an issue Metro can forfeit.
13
misconduct and the likelihood of its recurrence.” (Id. at pp. 217–
218.) A hearing officer abuses his or her discretion by issuing
a decision that manifests an indifference to these factors.6
(Kolender v. San Diego County Civil Service Com. (2007)
149 Cal.App.4th 464, 471 (Kolender II).)
According to Metro, the record shows Leuschner’s
misconduct was egregious: he violated its no-smoking policy,
became belligerent when his manager—Norman—called him
out for it, proceeded to assault Norman while he was defenseless,
bragged about doing so, and then made clear he would not
hesitate to use violence against a coworker in the future. Metro
argues that, given these facts, the harm to the public service
would be “extremely severe” if Leuschner were to return to
the workplace, as there is a strong likelihood he will continue
to engage in similar violent behavior. It also contends his return
would effectively tell other employees they can “pick up, throw,
body slam, kick, cut and curse out a manager and still keep
his or her job . . . .” Further, Metro insists Leuschner created
a significant threat to the health and safety of the public because
his altercation with Norman occurred in the control room of a
water treatment plant, and it caused disruption to computers
and equipment consoles monitoring drinking water for millions
of people.
6 AFSCME insists Skelly’s emphasis on the harm to the
public service does not apply to this case because the parties’
relationship is governed by the MOU, which requires Metro to
have “just cause” and employ “progressive discipline.” We need
not decide that issue because, even assuming Skelly’s emphasis
on the harm to the public service applies, Metro has not shown
error.
14
If the facts were as Metro presents them, we would have
no trouble finding the hearing officer abused his discretion.
Metro, however, erroneously views the evidence in the light
most favorable to it, drawing all inferences to support its position
and ignoring evidence to the contrary.7 In doing so, Metro
flips the standard of review on its head. (See Pedro v. City
of Los Angeles, supra, 229 Cal.App.4th at p. 99.)
Metro also completely ignores the hearing officer’s most
crucial findings, which we must accept as true if supported by
substantial evidence.8 (Menge v. Reed (2000) 84 Cal.App.4th
1134, 1139.) It ignores, for example, the officer’s findings that
Leuschner did not know he was violating the no-smoking policy;
Metro did not inform Leuschner of its policy prohibiting
e-cigarettes; Leuschner reasonably doubted Norman was
his acting manager; Norman made the initial physical contact
by lunging at Leuschner and headbutting him in the face;
and Leuschner, in turn, used force against Norman in order
to defend himself.
7 As just one example, Metro repeatedly insists Leuschner
bragged about knocking out Norman. Although Metro does not
cite evidence in the record to support this claim, we presume
it is based on Christina Schiro’s testimony that she overheard
Leuschner tell Wes Wiggs, “ ‘I just knocked [Norman] out. He
thinks he’s my manager. He can’t tell me what to do.’ ” Metro,
however, wholly ignores Wiggs’s testimony that Leuschner was
“upset at himself” and immediately said something to the effect of
“ ‘I messed up.’ ” In light of Wiggs’s testimony, the hearing officer
could have reasonably concluded Leuschner was not bragging.
8 We address, and reject, Metro’s substantial evidence
arguments in other sections of this opinion.
15
Under the version of events the hearing officer found to
be true, and viewing the evidence in the light most favorable to
his decision, Leuschner’s most serious transgression was getting
into a heated verbal argument with Norman, whom he believed
to be a coworker. While such misconduct might be sufficient to
warrant termination, it certainly does not compel it. At the very
least, reasonable minds could differ on the issue. (See County of
Los Angeles v. Civil Service Com., supra, 39 Cal.App.4th at p. 634
[“ ‘If reasonable minds may differ with regard to the appropriate
disciplinary action, there is no abuse of discretion.’ ”].)
We reject Metro’s contention that this case is comparable
to several others in which courts held administrative bodies
abused their discretion by failing to uphold an employer’s
decision to terminate an employee. (See Hankla v. Long Beach
Civil Service Com. (1995) 34 Cal.App.4th 1216; Cate v. State
Personnel Bd. (2012) 204 Cal.App.4th 270; Kolender v.
San Diego County Civil Service Com. (2005) 132 Cal.App.4th
716 (Kolender I); County of Santa Clara v. Willis (1986) 179
Cal.App.3d 1240.) In those cases, the administrative bodies
found the employees shot someone during a road rage incident
(Hankla, at pp. 1218–1221), lied to cover up a fellow employee’s
physical abuse of an inmate (Kolender I, at pp. 719–720), refused
to assist a mentally ill inmate who was hallucinating and then
compiled information to discredit the inmate as a witness in
a subsequent internal investigation (Cate, at pp. 273–274, 285),
and made sexual advances toward hospital patients and
coworkers that amounted to criminal battery (Willis, at p. 1251).
Such misconduct is significantly more egregious than the
misconduct the hearing officer found in this case. Moreover,
all but one of those employees were peace officers, who are
16
“held to higher standards of conduct than civilian employees”
like Leuschner. (Cate, at p. 285.)
After crediting the hearing officer’s factual findings and
viewing the record in the light most favorable to his conclusions,
we find the officer’s decision does not manifest an indifference
to the Skelly factors, including the harm to the public service.
Although some of Leuschner’s actions were undoubtedly
inappropriate, the officer did not abuse his discretion by
finding termination was excessive.
3. Metro has not shown the hearing officer failed
to consider relevant factors
Metro argues the hearing officer “manifestly abused
his discretion by failing to consider, let alone analyze” various
factors, including how Leuschner’s conduct harmed the public
service, the importance of Metro’s zero-tolerance policy on
violence, the dangers of smoking in the control room, and the
“organizational impact Leuschner’s return . . . would cause
to the morale, safety, and the work habits of other employees.”
Metro’s insistence that the hearing officer abused his
discretion on this basis is quite brazen given it, too, failed to
expressly address many of these factors. In its post-hearing brief,
Metro identified more than a dozen factors for the hearing officer
to consider, and it discussed many of those factors in detail.
Metro never explicitly mentioned the effect of Leuschner’s actions
on the public service or the dangers of smoking in the control
room. Its failure to do so forfeits those issues on appeal. (See
Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765,
787 (Niles) [“We have repeatedly held that issues not presented
at an administrative hearing cannot be raised on review.”].)
17
Metro’s arguments also fail on the merits. It is a
fundamental rule of appellate review that the reviewing court
presumes the challenged decision is correct. “ ‘All intendments
and presumptions are indulged to support it on matters as to
which the record is silent . . . .’ ” (Denham v. Superior Court of
Los Angeles County (1970) 2 Cal.3d 557, 564.) The appellant,
moreover, bears the burden to demonstrate error affirmatively
and show the error was prejudicial. (Shenouda v. Veterinary
Medical Bd. (2018) 27 Cal.App.5th 500, 512.)
Metro has not met its burden here. It points to nothing
in the record showing the hearing officer failed to consider all
the factors it identifies. Nor does it point to any authority that
would have required the officer to analyze those factors expressly
in his decision. Absent such authority, Metro has not shown
the hearing officer abused his discretion on this basis.
4. Metro has not shown the hearing officer erroneously
failed to consider relevant evidence
Metro argues the hearing officer committed clear error by
failing to consider evidence of Leuschner’s dishonesty during the
Skelly hearing about whether he kicked Norman. In declining to
consider the evidence, the hearing officer explained that Metro’s
notice of intent did not list dishonesty as a basis for terminating
Leuschner; nor did the Skelly officer’s decision cite it as a reason
for upholding the termination.
Relying on In the Matter of the Appeal from the
Termination of [Appellant] v. City of [Respondent], 1999
BNA LA Supp. 10895 (Gould 1999), Metro insists Leuschner’s
dishonesty was relevant to whether it assessed an appropriate
level of discipline in response to his other misconduct. We agree.
The fact that Leuschner refused to acknowledge alleged
18
misconduct tends to show he is likely to engage in similar
behavior in the future. (See, e.g., In re Marriage of Emilie
D.L.M. & Carlos C. (2021) 64 Cal.App.5th 876, 882 [“ ‘[o]ne
cannot correct a problem one fails to acknowledge’ ”].) Metro,
however, did not specifically urge the hearing officer to consider
the evidence for that purpose. Instead, in its post-hearing brief,
Metro argued Leuschner’s dishonesty supported its decision
to terminate him because it undermined its confidence in him
as an operator assigned to a crucial position. Phrased in
that way, Metro suggested Leuschner’s dishonesty was itself
misconduct that warranted discipline. This was improper,
as it bypassed the grievance procedure set forth in the MOU.
The hearing officer, therefore, correctly declined to consider
the evidence for that purpose.
Metro further claims the hearing officer failed to consider
many other pieces of evidence. Specifically, it contends the officer
ignored evidence showing Leuschner became belligerent after
Norman told him not to vape, had opportunities to verify that
Norman was the acting manager, continued to attack Norman
after he was defenseless, boasted to his manager that he knocked
out Norman, and suggested he would engage in similar conduct
in the future. It also argues the hearing officer ignored evidence
showing Norman and Leuschner were not equally culpable or
equally engaged in misconduct.
Metro does not point to anything in the record showing
the hearing officer failed to consider this evidence. (See Young
v. City of Coronado (2017) 10 Cal.App.5th 408, 432 [“The absence
of discussion of the evidence on the record does not mean that
the [administrative body] failed to consider the evidence.”].)
Nor has it shown the evidence compels a finding in its favor
19
as a matter of law. Metro’s arguments, therefore, appear to be
nothing more than thinly veiled attempts to have us reweigh
the evidence, which we will not do. (See Camarena v. State
Personnel Bd. (1997) 54 Cal.App.4th 698, 701 [a reviewing court
does not reweigh the evidence].)
5. The hearing officer did not exceed his authority
by imposing a suspension
Metro contends the hearing officer exceeded his authority
by imposing a three-week suspension on Leuschner, rather than
simply revoking its decision to discharge him. In support, Metro
relies on section 6.7.6(B) of the MOU, which states “[t]he decision
of the Hearing Officer may sustain or revoke the disciplinary
action or second level grievance response and shall be final and
binding on the parties.” Metro insists that under this provision,
a hearing officer only has two options: sustain the discipline or
revoke it.
Assuming for the sake of argument that Metro correctly
interprets the MOU, the hearing officer nevertheless properly
imposed a suspension under the authority the parties granted
him by stipulation. An arbitrator’s powers derive from, and
are limited by, the parties’ agreement to arbitrate. (Ajida
Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th
534, 543.) Nevertheless, the parties “ ‘may submit for decision
issues they were not contractually compelled to submit to
arbitration. In such event, courts look both to the contract and
to the scope of the submissions to determine the arbitrator’s
authority.’ [Citations.]” (Greenspan v. LADT, LLC (2010) 185
Cal.App.4th 1413, 1438; see Kelly Sutherlin McLeod Architecture,
Inc. v. Schneickert (2011) 194 Cal.App.4th 519, 529 [“The
20
arbitrator’s powers may be expanded or restricted by the scope
of the issues submitted to arbitration.”].)9
Here, the parties submitted the following issues to the
hearing officer: “Was Timothy Leuschner discharged by [Metro]
for just (proper) cause? If not, what shall be the remedy?”
According to Metro, the MOU authorized the hearing officer to
order only one remedy in the event he found Metro did not have
just cause to discharge Leuschner: revocation of the termination.
Therefore, by expressly asking the hearing officer to determine
the proper remedy, Metro must have contemplated and agreed
that the officer could order a remedy other than revocation.
Metro does not argue otherwise.10
9 We find arbitration authority instructive because,
although the MOU’s hearing procedure is not identical to
binding arbitration, it shares many of the same features. (See
American Federation of State, County & Municipal Employees
v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 258.)
Our Supreme Court, moreover, has considered arbitration
authority in the context of a case involving the discharge of
a public employee. (See Cranston v. City of Richmond (1985)
40 Cal.3d 755, 770, fn. 13.)
10 It is not surprising Metro would agree to grant the hearing
officer such authority. At oral argument before the superior
court, Metro conceded that its interpretation of the MOU could
lead to unwanted results absent such a stipulation. Specifically,
because the MOU does not have a remand provision, if a hearing
officer found an employee engaged in misconduct but Metro
imposed discipline that was too severe, the employee would
face no discipline. Metro could easily avoid such an outcome
by stipulating to allow the arbitrator to determine the proper
level of discipline.
21
Nevertheless, Metro seems to argue that under Valencia
v. County of Sonoma (2007) 158 Cal.App.4th 644 (Valencia),
its stipulation was somehow void. In Valencia, a county
terminated an employee, who in turn appealed to a civil service
commission in accordance with the terms of an MOU. The
commission vacated the termination, but imposed an alternative
form of discipline that the MOU did not authorize. (Id. at p. 646.)
On appeal, the county argued the commission was not a party
to the MOU, so it was free to impose any form of discipline.
(Id. at p. 649.) The court rejected the county’s position,
explaining it would be contrary to policy because it would allow
the county and its employees “to escape the negotiated, voluntary
constraints the MOU would otherwise place on their conduct
merely by appealing to the Commission . . . .” (Id. at pp. 649–
650.) In other words, it would render certain terms in the MOU
non-binding and illusory.
Metro contends Valencia stands for the proposition that
a hearing officer is bound to follow the terms of the parties’ MOU,
even if the parties stipulate otherwise. We fail to see how Metro
arrives at this conclusion. Valencia did not involve a stipulation
or anything comparable. Nor does the court’s rationale apply
to stipulations. The court rejected the county’s position because
it would have allowed either party to unilaterally avoid certain
terms of the MOU. There is no similar concern where, as here,
the parties mutually agree to grant the hearing officer authority
to determine an issue not mandated by the MOU.
Metro’s reliance on Metropolitan Water Dist. of Southern
California v. Winograd (2018) 24 Cal.App.5th 881 (Winograd),
is also misplaced. In that case—which involved the same parties
and MOU as this case—Metro and AFSCME asked a hearing
22
officer to decide whether Metro violated the MOU by using
a “ ‘ “comparative analysis” ’ ” procedure in connection with
a specific job posting and, if so, what is the proper remedy. (Id.
at p. 888.) During the hearing, the parties stipulated that Metro
did not use comparative analysis on any internal candidates in
connection with the posting. Nevertheless, the hearing officer
ordered Metro to cease and desist using comparative analysis on
internal candidates in the future. (Id. at p. 890.) The court held
the hearing officer exceeded his authority by deciding an unripe
claim and rendering a decision beyond the scope of the issue
before him. (Id. at pp. 894–895.) The court alternatively found
that, even if the parties asked the officer to consider the general
use of the comparative analysis procedure, he exceeded his
authority because the MOU expressly authorized Metro to
use comparative analysis when making employment decisions.
(Id. at pp. 895–896.) As a result, the hearing officer’s decision
violated section 6.7.6(A) of the MOU, which states “[t]he
decision of the Hearing Officer shall not add to, subtract from,
or otherwise modify the terms and conditions of this MOU.”
Winograd is of no help to Metro. The hearing officer’s
decision in that case precluded Metro from doing something
expressly permitted under the MOU. Here, the officer’s decision
did nothing comparable. Instead, it merely ordered Metro to
impose a suspension, which is a form of discipline the MOU
expressly authorizes. As such, the officer’s decision does
not violate section 6.7.6(A) of the MOU.
23
6. The hearing officer did not abuse his discretion
by concluding Metro could not discipline Leuschner
for insubordination
The hearing officer concluded Metro could not discipline
Leuschner for insubordination because Leuschner did not know
Norman was his acting manager. Metro argues substantial
evidence does not support this finding. In support, it points
to evidence showing Norman identified himself as the acting
manager, Leuschner knew Metro often assigned Norman acting
manager status, and, after the fight, Leuschner said something
to the effect of “Norman thinks he’s my manager.”
Once again, Metro views the record in the light most
favorable to it, while simply ignoring the evidence supporting
the hearing officer’s finding. Specifically, it ignores the
undisputed evidence showing Leuschner’s regular manager
announced Norman to be the acting manager about an hour
before the altercation. The regular manager did not tell
Leuschner he was leaving or that Norman was the acting
manager in his absence. Although Norman subsequently
informed Leuschner of his status, he did so in the midst of
a heated argument. Based on this evidence, the hearing officer
reasonably concluded Leuschner justifiably doubted the veracity
of Norman’s claim. Because there is substantial evidence
supporting the hearing officer’s finding, it is irrelevant that
substantial evidence might also support a contrary finding.
(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.)
Metro alternatively insists the hearing officer’s own
findings demonstrate Leuschner knew Norman was his acting
manager. Specifically, it points to the officer’s findings that
after Norman announced he was the acting manager, Leuschner
24
responded that Norman’s T-5 certification “doesn’t mean
anything; to fucking shove it up [Norman’s] ass, as far as
I’m concerned.” According to Metro, Leuschner’s response
“did not express any indicia of doubt but rather defiance to
being placed on notice of Norman’s supervisory status and
to receiving direction to stop vaping.”
Metro points to no evidence showing Norman’s T-5
certification was connected to his status as acting manager, or,
more importantly, that Leuschner believed that to be the case.
Absent such a connection, Leuschner’s comments actually
support the hearing officer’s finding that he did not realize
Norman was acting manager. Indeed, they suggest Leuschner
believed Norman gave him orders under supposed authority
arising out of his T-5 certification, rather than authority arising
out of his status as acting manager.
7. Metro has not shown the hearing officer abused
his discretion by disregarding evidence of Norman’s
injuries
Metro argues the hearing officer erroneously rejected
evidence showing Norman suffered greater injuries than
Leuschner. The hearing officer reasoned that such evidence
was irrelevant because Leuschner was “simply defending himself
from attack.” Metro insists this conclusion is not supported by
substantial evidence. According to Metro, the evidence instead
shows Leuschner needlessly escalated the conflict by flipping
Norman over his shoulder onto a console, throwing Norman
to the ground causing his head to strike the floor, and then
kicking Norman in the face while he was defenseless.
In making this argument, Metro completely ignores
the evidence showing the context in which Leuschner did
25
these things. Leuschner, for example, testified that he initially
threw Norman to the ground because Norman headbutted him
in the face. Rather than walk away and end the conflict, Norman
“bull-rushed” Leuschner and pushed him up against a console.
Leuschner reacted by flipping Norman over his shoulder onto the
console. Norman then continued to attack, punching Leuschner
three times in the ribs and attempting to punch him in the face.
At that point, Leuschner threw Norman onto the ground in
order to put some space between them. Norman quickly pushed
himself off the ground in such a way that Leuschner feared
he was going to attack again. Leuschner panicked and lightly
kicked Norman in the face. Based on this evidence, the hearing
officer reasonably concluded Leuschner was simply defending
himself from Norman’s attack. Metro’s arguments regarding
the extent of Norman’s injuries, therefore, lack merit.
8. The hearing officer did not abuse his discretion by
concluding Metro could not discipline Leuschner
for vaping
The hearing officer concluded Metro lacked just cause
to impose discipline on Leuschner for vaping because Metro
did not give him notice of its policy prohibiting e-cigarettes.
Metro posits various reasons why this was an abuse of discretion,
none of which is persuasive.
First, Metro argues the undisputed evidence shows
Leuschner became aware of its no-vaping policy when Norman
said something to the effect of “you can’t [vape] in here.” Even
if that were true, there is no evidence that Leuschner continued
to vape after Norman made the comment. To the contrary,
Leuschner testified that he put the e-cigarette down after
26
Norman asked if he was vaping, but before Norman said,
“ ‘You can’t [do] that . . . in here.’ ”
Next, Metro argues the record shows that, even if
Leuschner did not receive actual notice of the policy, he received
constructive notice because the policy was written, published,
and circulated to other employees. Metro also points out that,
at the time of the incident, state law prohibited vaping in places
of employment. (See Lab. Code, § 6404.5; Bus. & Prof. Code,
§ 22950.5, subd. (c).)
Initially, Metro did not make these arguments at
the administrative hearing, which forfeits them on appeal.
(See Niles, supra, 161 Cal.App.4th at p. 787.) In any event,
the hearing officer could have reasonably concluded it would
be unfair to impute constructive knowledge to Leuschner
under the circumstances of this case. The evidence shows Metro
informed employees of the no-vaping policy during a meeting that
Leuschner could not attend. Metro points to no evidence showing
it made other attempts to inform Leuschner of the policy, or that
it made the written policy readily accessible to him. Leuschner,
moreover, testified that he previously vaped in front of his
manager, who said nothing in response. On this record,
the hearing officer could have reasonably concluded it would
be unjust to impute constructive knowledge to Leuschner
and impose discipline on that basis. (See Cranston v. City of
Richmond, supra, 40 Cal.3d at p. 770, fn. 13 [“ ‘A fundamental
component of the just-cause standard is that employees must
be told what kind of conduct will lead to discipline—especially
if the penalty is to be discharge.’ ”].)
Finally, Metro argues the hearing officer committed
reversible error by failing to make a specific finding as to whether
27
Leuschner violated its Administrative Code, which prohibits
“[s]moking in restricted areas or where ‘No Smoking’ signs
are posted or otherwise violating [Metro’s] ‘No Smoking’ Policy.”
There are numerous problems with this argument. First, Metro
forfeited the issue by failing to specifically ask the hearing officer
to uphold Leuschner’s termination on this basis. (See Niles,
supra, 161 Cal.App.4th at p. 787.) Second, it is not clear
that “smoking” as used in the Administrative Code includes
e-cigarettes. Finally, Metro fails to point to evidence in the
record showing “no smoking” signs were posted in the control
room, or that Leuschner was aware it was a restricted area.
Accordingly, it has not shown the hearing officer’s failure
to make a finding on the issue was prejudicial.
9. Metro has not shown the hearing officer abused
his discretion by considering evidence of disparate
treatment
The hearing officer noted in his decision that, even if it
were not clear who escalated the verbal argument to a physical
fight, Metro’s termination of Leuschner was excessive in light
of the fact that it suspended Norman for similar misconduct.
The officer also noted that Metro had previously suspended,
rather than terminated, other employees for fighting. Metro
argues the hearing officer erred by considering evidence of these
other disciplinary actions, including the fact that it suspended
Norman.
As is a recurring theme, Metro forfeited this issue by failing
to raise it below. Metro did not object when AFSCME introduced
evidence of Metro’s discipline of other employees. Nor did it
object when AFSCME’s counsel explicitly argued that Metro
engaged in disparate treatment. Instead, Metro seemed to accept
28
that disparate treatment was a valid issue, as it devoted a
substantial portion of its post-hearing brief to arguing it was
justified in imposing different discipline on Leuschner and
Norman because they were not equally culpable. Metro did
the same in connection with its writ petition before the superior
court. Having lost that issue below, Metro now claims the
hearing officer erred by even considering evidence of disparate
treatment. Metro’s failure to raise the issue in a timely manner
provides a sufficient reason to deny its claim on appeal. (See
Niles, supra, 161 Cal.App.4th at p. 787.)
Even on the merits, Metro’s argument fails. Metro cites
authority standing for the proposition that disparate treatment
is not a sufficient reason to overturn an employer’s disciplinary
decision. (See Marino v. City of Los Angeles (1973) 34 Cal.App.3d
461, 466; Kolender II, supra, 149 Cal.App.4th at p. 473; Pegues
v. Civil Service Com. (1998) 67 Cal.App.4th 95, 106.) While
that may be true, it does not follow that evidence of disparate
treatment is wholly irrelevant. Here, for example, the fact
that Metro did not terminate other employees who engaged
in similar misconduct, including Norman, suggests it overstated
the negative impact of Leuschner’s misconduct. Accordingly,
the hearing officer did not abuse his discretion by considering
such evidence.11
11 We also reject Metro’s passing suggestion that the hearing
officer was required to make explicit factual findings regarding
the other incidents of misconduct. In support, Metro cites Talmo
v. Civil Service Com. (1991) 231 Cal.App.3d 210, but the court
in that case held no such thing.
29
DISPOSITION
We affirm the judgment. AFSCME is awarded its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
VIRAMONTES, J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
30